Dr. Carl Haensel Final Plea Guenther Joel Its task to administer justice internationally should have been fulfilled by an international court.
"The United States cannot avoid this responsibility." continued the public Prosecutor (Annex, Note 2).
"In Nuernberg we can only carry out a fraction of it. Nuernberg must become a symbol not the symbol of revenge or of self-satisfied complacency, but that of peace and understanding among the nations and people."
Those are noble and fine words and they indicate unmistakably that the law which is the basis of those proceedings is international law.
Regulation No. 47 of the British Military Government, which was enforced on 30 August 1946, transfers the jurisdiction concerning crimes against humanity (Art. II, 1c) to the German courts, if the crime was committed against German nationals or stateless persons.
According to this regulation, a German judge may apply the German Penal Code; he may also assimilate the German legal scope to that of Law No. 10; he may not, however, apply either the statute of limitation (Verjaehrungs) or the amnesty regulation (Amnestieverschriften) issued under Hitler, Such procedure as described is a transformation (Note 3. This procedure demonstrates that the law of Lex 10 before its transformation into the German law was purely international law. Lex 10 itself, in its Article III, Id, last sentence, provides for such a transformation possibility. As for the rest, in order to demonstrate the international nature of the facts laid down in Lex 10, I should like to refer to my trial brief about conspiracy, dated 30 June, and to the one about knowledge of conspiracy, dated 3 August 1947.
The regulations stated under cipher II, 2 b,c, d Court III Case III Final Flea Guenther Joel and c of the Control Council Law concerning participation, arc also international law.
We are not interested in subparagraph f.
Cipher II, 2 begins by laying down a norm from the sphere of the laws that provide which of the penal codes of various States are applicable, thus laying down a norm of the international criminal law in the customary sense, meaning not only Germans but also every foreigner is subject to the law, regardless of his "capacity"; translated into German as "Eigenschaft" in the translation now in use, it could however, also be "Stellung". The customary exemptions from the penal law for heads of States, the immunity of delegates, international reasons for exemption---- the so-called exterritoriality-- are said to be abolished.
Subsections a and b list guilt (Taeterschaft) and complicity (Teilnahme)---- instigation (Anstiftung) or aiding and abetting (Beihilfe) --- which are obviously related to the principles developed in international penal law; also, connivance (Beguenstigung) is mentioned, which is listed in the German Penal Code under paragraph 257 of the Special Part and not in the general one.
According to subsection c those persons shall be punished who "took a consenting part therein"-- "wer durch seine Zustimmang daran teilgenommen hat," The word "therein" refers to one of the crimes listed under cipher 1. "Took consenting part" is a diplomatic formulation which was chosen by statesmen. The Moscow Declaration, on 1 November 1943, for the first time establishes the responsibility of the German officers, soldiers and members of the Nazi Party "who have been responsible for, or have taken a consenting part" (Anm.4). "die fuer die obigen Grausamkoiten verantwortlich sind. oder an ihnen zustimmend teilgchabt haben."
Court III Case III Final-Plea Guenther Joel President Roosevelt, in his declaration on 24 March 1944, repeats the threat "that nobody taking part in those barbaric measures shall escape punishment."
(Note 5).
As a matter of fact, "consent" cannot be regarded relevant because it is a fact as shown by internal evidence (innerer Tatbostand). Only "mens rea" and "actus reus" together arc a punishable offense. It is therefore required that "consent" find realization in the "take part", that is to say, in intended participation. Not every kind of participation, as used in every-day language, actually means participation in the sense of punishable. Only those who, by taking part, helped to bring about a successful outcome, can be called, participants in accordance with the penal law (Note 6).
The international agreement of the victors to make those responsible who "took consenting part" in the war crimes is, therefore, only a general instruction for the judges, who adjudicate according to these agreements not to leave those unpunished who "took consenting part" in the criminal offenses against international law. The agreement excludes from punishment those who got entangled in offenses which became historical events, without their inner consent or without having approved them in their heart. Therefore, neither the objective "taking part" nor the subjective "consent" is sufficient, but both suppositions must be on hand at the same time.
The word "planning" which appears under letter d brings to mind the conspiracy definition in Art. II, 1, letteraa. According to paragraph 1, letter d, he is punishable "who was connected with the planning or the execution of a crime (as listed under cipher 1)." There is, however, a great Court III Case III Final Plea Guenther Joel difference between a common plan and "having something to do with the planning of a crime". At any rate, both definitions cannot be regarded as equivalent; they do not have the same meaning.
Conspiracy means the agreement in the execution of the crime described -- in a fact in itself; participation in the planning, on the other hand, involves a form of participation. We are used to describing planning as attempt.
The English jurisprudence mostly speaks of "attempts". This description is expressed in other words in Lex 10, Art. II, 2 d by "participation in the planning" (Teilnahme an der Planung).
Planning is of importance mostly if there are several accomplices. Often the English literature does not clearly differentiate between the planning as independent fact and the planning as first stop toward the attempt. Bishop even says:
"The act of conspiring, and the specific intent to accomplish what constitutes a substantive crime, are in combination a criminal attempt, and it is the professional usage to term it conspiracy. It follows the same rules and is subject to the same limitations as other attempts."
Sayre, however, be referring to the existing theory, objects it as false (Note 7): Conspiracy is a delict which had boon committed long since, before the offense was so near to its execution that it could have been punished as attempt.
The international standard of punishment was never formulated as exactly as our codified regulations. It indicates the guiding principles, gives the direction according to which the judge has to maintain his attitude. The directions under subsection d are to be interpreted in such Court III Case III Final Plea Guenther Joel way that apart from punishing the accomplices as listed under a - c in the widest sense, also the act of the attempt itself is to be punished, not limited by casuistry, but to the widest extent, if the execution of a crime was already realized (Par.
4-3 of the German Penal Code). The Anglo-Saxon application of the law is quite similar to our application. It is, however, often -- to quote General Taylor -- a hair-splitting (Note 8), whether the preparatory action is already "sufficiently proximate to be an attempt" or is "mere preparation" (Note 9). International law, however, demands wide scope and generosity, clear results, no half-and-half results, strong lines, which can bo recognized even from afar, and no vaguenesses.
Subtle hair splittings must be excluded if only for the reason that they cannot be translated in all their fineness. To be sure, whoever is working for the community of the nations has no need to speak Esperanto. Esperanto would correspond to an electic method of mixing standards, incapable of execution. Whoever deals with international law has to talk and before this must learn to think in simple sentences which are understandable to foreign ears also. That the real meaning of the English expression "connected with plans" of Section II, 2, subsection d, is something absolutely different from the legal definition of "conspiracy" of Section II, 1, subsection a, or of Section VI, subsection a, of the statute "participation in a common plan or conspiracy" is shown by the French translation. Section VI, subsection a, is translated here by "complot pour commottre l'unquelque des crimes" and Law 10, Section II, subsection d, with "a participe a des plans ou a des entreprisos." This French wording meets the Court III Case III Final Plea Guenther Joel experimental character of this statute.
The diction of international law which is completely alienated from our severe formulation of facts is demonstrated in the clearest manner by subsection c, which says that ho is punishable who "has been a member of an organization or group connected with the committing of the crime." From a comparison of the subsections a to c, the gradual construction will be seen at once. Concentric circles are drawn around the main offense, circles which are always farther from the nucleus of the dead and are losing in intensity, exactness and strong coloring, but are becoming larger and larger at the same time. Circle a included those who had been in connection with plans or with the carrying out; circle c, those who had only been members of an organization or group which had been connected with the committing of the crime. planning has been discarded here and has obviously been amalgamated with the expression of organization or group. The subsections a to c, therefore, arc not mere specifications, each part of which is independent and excludes the other, but they are a gradual conduction into a collective meaning which must be tackled from a central point.
Were Law 10 approached with the usual interpretation of the continental jurist, subsection a in combination with Section II, I, subsection d -- membership in criminal organizations -- would result in the following picture:
According to the judgment of the IMT, the SS had been employed for tasks which, under the statute, were criminal (Note 10). The SS, therefore, was connected with crimes as mentioned in Law 10, Section II. Every Ss man would have to be punished, therefore, under subsection c of Section II, 2. But under the statute on membership in criminal Court III Case III Final Plea Guenther Joel organizations (Section II, Id) only he may be punished who was a member having full knowledge of the criminal aims (judgment of the IMT). Subsection c then would be contradictory to the main law in the essential point, and that would make no sense.
One arrives at a reasonable conception only by taking, as a first step, the law concerning the membership in criminal organizations not as an independent fact which is not part of the present legal system, and by interpreting the knowledge requested by this law in a purely logical manner. I therefore have suggested to construe this law as conspiracy under international law, and thus to interpret this rather intractable conception of knowledge as the intent to further the known criminal goals. Knowledge then will mean not a simple "having heard about it", but the real activity of the will, a union for criminal purpose. These facts have been clearly outlined as written international law by Law 10 and by the judgment of the IMT. The objections connected with the indefinite outlines of conspiracy under the common law could not be raised against this interpretation. Only this conception of conspiracy, connected with war crimes and crimes against humanity, which had no foundation in Law 10, had been rejected by the Nuernberg Military Tribunals (Note 11). Even when the Section II 2 c is applied, the principle of international law should be introduced in addition; namely, that every guilt must be a personal one and that nobody must bo punished who is innocent in this point. From the conception of the organization or group in connection with the crimes at issue we must infer, therefore, that a membership is not punishable already when the member received knowledge of the connection with such crimes of Court III Case III Final Plea Guenther Joel members of this organization from hearsay, but only if his own membership is an act of the intent to participate and to support an organization which has to do with the crimes mentioned.
The difference as against the membership in an organization which has boon declared criminal by the IMT would bo that the membership in another organization could be punished likewise for being a manner of participation. But the evidence concerning this manner of activity of the organization would have to be proved always anew. It must be admitted that there is a good reason for not limiting once and for ail the number of the criminal organizations with some kind of negative legal validity to those which have been condemned by the IMT, but to provide under international law for the possibility that other unions of persons may have or could come into being, whoso members should be prosecuted for unlawful organizing. When solving the question of what is meant by "organization or group" (Organization oder Vereinigung -- "organization ou de tout groups") in subsection c, we must take into consideration that, under the opinion of the judgment of the IMT, forming of groups can only bo assumed of the entry in such organizations or groups is based on an act of will and therefore on voluntariness. Under the meaning of the judgment of the IMT we must ask in addition that the respective union of persons has already become active as a group or organization. To be sure, we should not overlook that the English word of "organization" has a wider meaning than our foreign word "Organization" (Note 12). But the two prerequisites of voluntary membership and of the activity of the group should be met by the English expression likewise.
Court III Case III Final Plea Guenther Joel In spite of a knowledge in the moaning of "having hoard about it", a purely theoretical connection with the deed of another is not sufficient for the assumption of participation as defined in Section II 2. In each of the concentric circles there must bo, in addition to the knowledge and theoretical connection, an activity activated by the will, and this activity must bo obvious to the outsider likewise.
The conception of "being connected" must ask not only for an external connection but also for an internal and directed-bywill connection, and herewith the strict limitation of "knowledge" to definite crimes or at least to a definite group of crimes becomes a condition. The extension as against the continental participation seems to me to lie in the fact that the direct connection is included which docs not make a "condition sine qua non" an essential prerequisite. The main perpetrator in the moaning of subsection a sots up a cause in the sense of the doctrine of causality, and the accessory a condition (subsection b). This differentiation in the field of the theory of causality cannot bo motivated by pure logic because if taken all in all, the conditions of a success arc all equal in value, equivalent in the moaning of Burls (Note 13). We will not bo able to make progress without referring to the subjective part of the matter. When differentiating between the "animus Auctoris" and "animus socii", between the acting in one's own interest and in that of another (Note 14), the literature of our Supreme Court of the Reich is progressing in this direction. The "approval" of subsection c is also an inner act which makes its outward manifestation in the "participation". Success is not a condition, and the attempt is not sufficient. He who has been, in the moaning of subsection d, "connected Court III Case III Final Plea Guenther Joel with the planning" does not sot up a condition; the looking on, the "connection" must, on the other hand, find its expression in the inner participation, in the intent to help.
To be "connected with" is a furthering interest in the wanted success which can remain an attempt. Nevertheless, this looking-on is personal and direct, When it evaporates into indirectness, into the membership in an organization which, on its part, is directly connected through other members, we arrive at the outer circle of these enlarged forms of participation of subsection c. But on this enlarged form of participation also applies the principle that a purely objective being-involved-in-events is not sufficient, be it direct, personal (d) or direct through a community (c), in events which moan the facts of a crime for others. First, there must be existent the own criminal intent, and second, this intent must find its expression in deeds by which the "being involved" is proven. There is no criminal guilt due to an accidental, casual looking-on while others commit a crime, but the defendant must have become conscious of his direct or indirect participation as an expression of his approval or abetting of those crimes; nothing is and about a milder punishment of acts of participation than those passed on the perpetration of the crime. From this fact we are not to infer that his should not be the case. Not on the basis of the general parts of the national criminal code, but on the basis of its mental vision and apparently just perception of the character of the criminal punishment, whether, for instance, this punishment shall punish the endangering of the community or the mentality of the individual or both, whether it is meant for atonement or for deterring, the court passes its decision on whether a milder punishment shall be meted out to the accessory than to the main perpetrate Court III Case III Final Plea Guenther Joel In the quoted statute, the international law advises the court only to punish him and to lot him not go unpunished.
The decision of the court will influence as a prejudice the later development of international law, and the judge of the future will be in a better position. The judges of the first international tribunals are in a fully different position than the national judge who passes his sentences on the basis of a criminal code. They have not only to interpret but the create amendments out of the spirit of international law, They are not permitted to make this task easier than it is by simply taking over into international law without any change a national perception which is familiar to them.
That the juridical comparison for objective standards docs not help us to progress is disclosed by the example of "incitement". Under continental law the incitement is of accessory nature and punished only if the deed, which was the object of the incitement, has been committed (Note 15). Incitement is punishable under Anglo-Saxon law even if the perpetrator did not actually commit the deed to which he had been incited (Note 16).
It therefore would bo possible that on the basis of the same facts a conviction would have to bo passed under one law and an acquittal under the other, depending upon which law is applied, Anglo-Saxon or continental law.
Two fundamental principles must be observed in the application of the ordinances on participation of the Control Council Law as well as in the application of any international or national criminal law; namely:
(1) There is no punishable participation if the particular circumstances of the case establish Court III Case III Final Plea Guenther Joel an emergency.
Here I refer to page 16,880 of judgment of the IMT:
"The true test which is found in varying degrees in the criminal law of most nations is not the existence of the order, but whether moral choice was in fact possible."
(2) In dubio pro roo. This sentence was granted special consideration in the judgment and its amendments versus Milch in the Milch case of Military Tribunal II in Nuernberg in March 1947.
Any doubt as to whether a deed meets the facts suggested by the international statutes must be interpreted in favor of the defendant. When hair-splitting and juridical subleties begin, punishability under international law ends. Matters which could still be included in the compass of punishment under national law after a subtle interpretation must be discarded when soon from the high level of an international court. Ho who is not found guilty in accordance with fundamental principles and without the shadow of a doubt shall not be takes to account in accordance with international law. The fact whether our subtle conceptions of the consciousness of criminality should bo taken into consideration for instance, but the International Tribunal, must be checked from this limiting viewpoint exclusively. The IMT has ruled:
"They must have known that they were acting in defiance of all international law" -
"the attacker must know that ho was doing wrong. The demands asked from such knowledge must not be inferior but superior to those asked from the consciousness of criminality.
The defendant Joel cannot be called a perpetrator.
Court III Case III Final Plea Guenther Joel Neither was he a participant -- since he lacks the"animus socii."
He has no need to claim tho benefits of tho sentence of "in dubio pro roo! I shall prove that ho is guiltless beyond any doubt.
II.
Activity of Jr. Joel as "Referent" in tho Ministry (1) As stated by the documents cf tho Prosecution covering tho time from 1 September 1939 until 17 August 1943.
The Prosecution has brought no charge for acts which happened before the outbreak of the war to bo independent crimes. Events prior to 1 September 1939 therefore have only a supplementary character and must bo taken into consideration only if they are particularly connected with later occurrences.
At the outbreak of tho war, Dr. Joel was one of the twenty-two Referenten of tho Criminal Department, one of tho sixty-four higher officials dealing with criminal cases and one of more than two hundred Referenten of the Ministry of Justice (Note 18). His Referat included offenses deriving from blackout regulations and war conditions in general (Decree against Public Enemies); violent crimes (Decree against Violent Criminals); and tho removal of foodstuffs and other vital consumer goods (War Economy Decree). Excluded from this Referat were political matters, such as high treason and treason, listening to forbidden radio stations, racial pollution, violations of tho so-called. Malicious Statements Law, seditious undermining of tho defense spirits, giving aid and comfort to the enemy, and the like. These were dealt with in other Sachreferaten. Nor was Dr. Joel concerned Court III Case III Final Plea Guenther Joel with the preparation of laws, decrees, and general directives to the judicial authorities.
He never was a member of the Legislation Department. The criminal cases conferred upon Dr. Joel's Referat referred to delicts which in all the countries directly affected by the state of war required special attention. The essential matters were offenses against the War Economy Decree which, after the application of the other emergency laws, had soon begun to run smoothly, taxed Dr. Joel's energies nearly to capacity (Note 19). His tasks consisted in preparing the decrees which served the service supervision by the Reich Ministry of Justice of the activities of the Prosecution's offices, as far as those concerned individual criminal cases according to the War Economy Decree. With attempts of the Party at preventing proceedings against its proteges particularly numerous in the very domain of the War Economy Decree. With attempts of the Party at preventing proceedings against its particularly numerous in the very domain of the War Economy Decree, Dr. Joel found in it a field of activity in which, within the scope afforded to him, ho had excelled since his appointment to the Ministry. His goal was to safeguard an independent administration of the law against any encroachments by the Party.
Is a Referent Dr. Joel was subordinate to the Chief of the Criminal Department and his sub-department chiefs. Therefore, he never could make a decision of his own. No document of the Reich Ministry of Justice that contains a decision bears his signature. Only occasional, unimportant directives could be signed by a Referent independently (Note 20). Such a document has not been submitted to the court either.
Court III Case III Final Plea Guenther Joel A further task of Dr. Joel was, in individual criminal cases, if required, to contact the police, SS, and SD.
This task had been conferred upon him by Minister Guertner through the directive dated 19 December 1937 (Note 21). This task was likewise used by Dr. Joel to ward off encroachments by the Party and police upon the administration of justice.
Dr. Joel commenced his career - he was not claimed by Freisler, as witness Schulz erroneously assumes, but by a Referent of the Ministry (Note 22) -- as a young assistant judge, and bis his energy and eagerness to work, his sense for justice and his rigorous enforcement of the law, ho attracted Minister Guertner's attention, whoso noble character has been testified to by many witnesses. One of the adjutants of the Minister of Justice was the Nazi opponent Dohnanyi, who became a victim of the happenings on 20 July 1944. In the circle of officials not spoiled by National Socialist ideologies, Guertner included also Joel, This was the vary reason for his using him as his confidant in dealing with agencies of the Party and police, for which purpose ha would under no account take a man who made advances to the desires of the Party which were to the detriment of an orderly administration of justice and who took the side of the police, which was coordinated by Himmler on a strictly National Socialist basis (No. 23).
(a) Encroachments Upon the Administration of Justice When Minister Guertner had learned from newspaper reports that persons had been shot "while escaping" or "while offering resistance", ho commissioned Dr. Joel to establish what was going on because Dr. Joel was the liaison man to the police.
He ascertained that this was done on Hitler's personal order, and that even the newspaper reports were formulated by Hitler. There soon followed reports on Court III Case III Final Plea Guenther Joel the shooting of persons who had been sentenced to prison; but Hitler had considered the penalty to be too mild.
The efforts made by Minister Guertner and Under Secretary Schlegelberger to re-establish the jurisdiction of the judicial authorities and to bring about the cancellation of orders of this nature given by Hitler, have been discussed in detail. The valuable assistance rendered by Dr. Joel in this connection has boon recognized by all persons concerned. Dr. Fool succeeded in obtaining from the police the prolongation of the 24-hour term sot by Hitler for the execution of his order. He procured the documents for the remonstrances to be made by the Reich Ministry of Justice, prepared apologies which, forwarded to Hitler, were to prove to him that the sentences were just. Strong words contained in the amplifications made in favor of the sentences were occasionally softened by Under Secretary Freisler, in order not to provoke Hitler (Note 24). With all integrity Dr. Joel applied to the supreme agencies of the Reich against Hitler's orders (Note 25).
If Dr. Joel's remonstrances succeeded in obtaining a prolongation of the term sot for the execution of the orders, the Reich Minister of Justice via Minister Meissner could make remonstrances with Hitler, which sometime induced him to review his decision.
In one case of a hardly 18-year old sex criminal, Dr. Joel, in agreement with Minister Guertner, looked up Adjutant Schaub, who happened to be in Berlin, asked for his intervention with Hitler on behalf of the convict, wrote a letter to Schaub giving a detailed account of the facts and, when Schaub refused to intervene, looked him up a second time. Hitler then, though not canceling his Court III Case III Final Plea Guenther Joel order, did not insist on its execution either.
Thus, the convict was saved (Note 26).
In another case a defendant was, on Hitler's order, handed over to the State police immediately before the trial and without the knowledge of the Reich Ministry of Justice. Dr. Joel achieved his being brought back into the custody of the judicial authorities. (Note 27).
From the fact that Dr. Joel received three telephone calls from Hitler's adjutant conveying Hitler's orders to the Reich Ministry of Justice to the effect of handing over prisoners to the police, no punishable act can bo inferred (Note 28). The very activity of Dr. Joel consisted in offering any possible resistance to these orders of Hitler. Among his colleagues in the Criminal Department, upon whose domain Hitler's orders encroached, he was the only person who, with the aid of all possible agencies outside the Reich Ministry of Justice, tried to bring about counter measures.
With all his integrity he stook up also against the encroachments upon the administration of the law by the police which, after the beginning of the Russian Campaign, tried gradually to take away also the "Eastern workers" from the jurisdiction of the regular criminal courts. Today we know that this was part of Hitler's Eastern policy and that Minister Thierack cooperated in this policy in officially refusing to grant Poles and Jews the protection by the courts in 1943.
The Prosecution has submitted a list of oral reports (Note 29). They include oral reports which had boon ordered by Minister Thierack toward the end of 1942.
The general legal regulation concerning the treatment Court III Case III Final Plea Guenther Joel of foreign workers was a matter of the Generalreferent of the Criminal Department and Legislation Department of the Reich Ministry of Justice (Note 29). Ministerialdirigent Grau and Ministerialrat Mielke handled the matter.
As for the mode of procedure to be followed in principle in individual cases, this was left to the decision of the Generalreferent of the Criminal Department who acted in accordance with the directives given by the Minister and his departmental chief. Dr. Joel had been called in because in individual cases he had hitherto been working in support of the competent specialist of the Criminal Department in order to bring about the jurisdiction of the judicial authorities as against the police. This accounts for the note pertaining to the oral report on page three of the Document "Joel-Mielke". What kind of "internal directive by the Reichsfuehrer SS concerning the treatment of Poles, Jews and Russians" had been given to Minister Thierack at that time, the defendant Dr. Joel was not told. He merely reported on his individual cases, which are contained in the list. In his oral reports Dr. Joel represented the viewpoint of the law that everyone committing an offense had to answer for it in a criminal proceeding before the courts. That this point of view had until then boon successfully advocated by Dr. Joel over against the police is shown by the notes pertaining to the oral reports which, with one exception, make clear that criminal proceedings were pending with the judicial authorities.
In the transcript of a discussion of the Senior Public prosecutors at the Court of Appeal District Koeln on 8 July 1942, following a meeting in Berlin of the administration chiefs on 30 June and 1 July 1942 (Note 29b), mention is Court III Case III Final Plea Guenther Joel made of a directive by the Reich Minister of Justice, according to which Russians and Poles who had committed a criminal act were to be judged and sentenced by the courts.
This directive was given in order to disperse doubts on the part of the prosecuting authorities as to whether the State police was authorized to deal itself with accused Eastern workers. If the local judicial authorities did not succeed in safeguarding the jurisdiction of the judiciary, they had achieved that the police left the treatment to the administration of the law.
The allegation that the defendant Joel had handed over prisoners to the State police is incorrect and is refuted by the notes on this list of oral reports.
The Polish citizen Bartesinski had been sentenced to three years penal camp for prohibited sexual intercourse; the Polish citizen Marziniak had been taken into pre-trial detention for prohibited sexual intercourse. See pages two and five of the list of oral reports. Marziniak is identical with Massynski. In these cases the jurisdiction of the judiciary had been maintained. In the case of Marziniak, the supplementary note to the effect that he had intended to marry a German female servant in France, suggested that if this allegation was corroborated, the criminal well proceeding would have to be suspended. Dr, Joel as as his department chief, during the first oral report on 19 November 1942 and during the second report on 17 December 1942, refused to grant the request by the Gestapo for handing over the accused. The success of his first oral report ensues from the ordering of the second oral report. As far us Dr. Joel remembers, Minister Thierack made no decision during the second oral report.
Court III Case III Final Plea Guenther Joel The notation on the report concerning "a Russian from the District Kursk" likewise shows that a proceeding was pending against him for a violation against Article 2 of the Decree against Public Enemies.
Dr. Fool together with his departmental chief refused to hand over the accused.
The "Eastern worker from the old Soviet territory" had boon committed by the State police to a labor and reformatory camp, though he had received a one-month prison sentence for larceny. The State police therefore wished to have the prison sentence suspended. Since the convict was in a labor camp and his prison term could thus be regarded as served, Dr. Fool and his departmental chief pleaded for his return to his working place.
The suspension of the sentence was legally impossible. Minister Thierack did not oppose in this case. Here Dr. Joel pushed on the release of the convict.
The case Jakubowski illuminates the procedure of the police at that time. Under conscious exclusion and without the knowledge of the administration of the law, the criminal police settled this case of rape independently. Dr. Joel reported on the matter to the Chief of the Criminal Department and to Minister Thierack in order to cause an effective protest to be lodged against this treatment and in order to prevent similar proceedings in the future. Minister Thierack agreed and Joel made personal remonstrances with the chief of the criminal police.
Dr. Joel was not the referent for clemency matters. For the treatment of questions of clemency after the passing of a death sentence, special Referenton had at all times been assigned in the Criminal Department of the Reich Ministry of Justice. According to the distribution of work of the Criminal Department of April 1943 (Note 30), the Court III Case III Final Plea Guenther Joel persons working on this matter were Ministerialrat Altemeyer and Senior Public prosecutor Ehrhardt, who appeared as witnesses before the court.